Vardhan Syntex, a Unit of Zenith Ltd. and Another vs Union of India (UOI) and Others

V.A. Mohta, J.—By this petition, the adjudication order of the Assistant Collector, Central Excise, Division Amravati (Respondent No. 2) dated 5th July 1986, about classification of yarn manufactured by the petitioner, has been challenged. Chemical Examiner found that the yarn contains manmade fibre of non-cellulosic origin and hence it was liable to be classified under T.I. 18 (III)(ii) of the Central Excises and Salt Act, 1944 (The Act).

Before hearing commenced, Shri Bhangde, the learned Counsel for the respondents, raised a preliminary objection to the effect that alternate remedy of an appeal u/s 35F of the Act, though available, has not been exhausted and under the circumstances, we should not entertain the petition and dispose of it on this ground only. Strong reliance was placed in this connection on the case of Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. and Ors. AIR 1965 S.C. 330 in which the following observations are made:

But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.

It seems to us that the preliminary objection is well founded. At the time of admission of this matter on 28th July 1986, the respondents were not heard. They have raised the preliminary objection on the first available opportunity and when limitation of 90 days prescribed for filing the appeal is not over.

Our attention has been invited by Shri Rana, the learned Counsel for the petitioner, to the case of R.K. Synthetics and Fibres Pvt. Ltd. and Anr. v. Union of India Writ Petition No. 1802 of 1983, decided on 3rd December 1985, at Bombay and some decisions of the different appellate authorities under the Act dealing with the subject on merits. We see nothing so very obvious about of matter which justifies entertaining of the writ petition at this stage and in the background noticed earlier. High Court has held that synthetic waste imported by Writ Petitioner M/s R.K. Synthetics falls under Item 18(I)(i) of the Central Excise Tariff for the purposes of calculating countervailing duty. Appellate authorities'' judgments appears to be varying and are the matters pending before the Tribunal. It appears that Writ Petition No. 810 of 1985 in the matter of Jain Spinners Limited and Anr. v. Union of India and Anr., has been admitted by this Court at Aurangabad Bench and partial interim stay of the recovery has been ordered and on that basis it is contended that in the interest of consistency we should not dispose of the petition on a preliminary ground. We do not agree. We do not know the background of that matter. No final adjudication has yet taken place and hence the said interim order cannot be said to lay down any ratio having binding effect on us.

It is brought to our notice that against the similar order passed by the Respondent No. 2 in the case of M/s Orient Synthetics Ltd. Yavatmal (Maharashtra), Calcutta High Court has entertained a Writ Petition and has granted stay as a result the petitioner has to face a competition and at least this consideration should be enough to hear the matter on merits. In the first place, we do not know as to how matter arising from the said order has been entertained in Calcutta High Court. Secondly, we are informed by the respondents that they have not accepted that interim order as final. In any case, that interim order of Calcutta High Court cannot, in our view, be the basis for rejecting the sound preliminary objection.

Our attention was also invited to the case of Sainet Private Ltd. and Another Vs. Union of India (UOI) and Another, in support of a contention that remedy of an appeal is no bar to entertaining of the petition under Article 226. We are not disputing this legal principle. There is no difficulty about jurisdiction; difficulty is about the propriety.

It is next contended that recovery comes to near about a crore of rupees and hence appellate provision which mandates payment as a condition precedent to entertain appeal is not an efficacious remedy. We do not agree. All depends upon financial condition and turn over of each factory owner. Moreover, there is ample discretion in the appellate authority to relax the condition wholly or partially in appropriate cases. We cannot assume that in no case this discretion is exercised.

For all these reasons, we are not inclined to entertain this petition on the ground of existence of alternative remedy of appeal. Petition dismissed. Rule discharged. No costs.